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Thursday, May 15, 2008

DEV DUTT Vs. UNION OF INDIA & ORS - Service Matter

Judgement of the above noted case bearing Appeal (civil) No. 7631 of 2002 was delivered by the bench of Supreme Court of India comprising of Mr. H. K. Sema J. and Mr. Markandey Katju J. on May 12, 2008.

The significant question in law involved in the case was whether non-communication of entry in Annual Confidential Report of a public servant on the pretext of any Government Order or memorandum amounts to arbitrariness and violative of natural justice?

In this case the appellant was in the service of the Border Roads Engineering Service which is governed by the Border Roads Engineering Service Group 'A' Rules, as amended. As per these rules, since the appellant was promoted as Executive Engineer on 22.2.1988, he was eligible to be considered for promotion to the post of Superintending Engineer on completion of 5 years on the grade of Executive Engineer, which he completed on 21.2.1993. Accordingly the name of the appellant was included in the list of candidates eligible for promotion. The Departmental Promotion Committee (DPC) held its meeting on 16.12.1994. In that meeting the appellant was not held to be eligible for promotion, but his juniors were selected and promoted to the rank of Superintending Engineer. It is because as per guidelines for promotion of departmental candidates which was issued by the Government of India, Ministry of Public Grievances and Pension, vide Office Memorandum dated 10.4.1989, only those candidates who had 'very good' entries in their Annual Confidential Reports (ACRs) for the last five years would be considered for promotion, but the appellant did not have 'very good' entry and only 'good' entry for the year 1993-94.

The grievance of the appellant was that he was not communicated the 'good' entry for the year 1993-94. He submitted that had he been communicated that entry he would have had an opportunity of making a representation for upgrading that entry from 'good' to 'very good', and if that representation was allowed he would have also become eligible for promotion. Hence he submitted that the rules of natural justice have been violated.

The court relied on Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 in which arbitrariness in any form was held to be violative of Article 14 of the Constitution. Further the Court observed that the object of writing the confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of U.P. vs. Yamuna Shankar Misra 1997 (4) SCC 7. Hence, non-communication of entry in Annual Confidential Report amounts to arbitrariness.

The court further emphasized on rule of Natural Justice as held in A. K. Kraipak & Ors. vs. Union of India & Ors. AIR 1970 SC 150. In that case it was held:

"The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet csse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice".

Accordingly Court developed the principles of natural justice in case under consideration by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. It was further held that above position would be correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution. Article 14 will override all rules or government orders.

Accordingly, appeal was allowed.

For getting complete judement as pronounced by the court, please follow link below:http://judis.nic.in/supremecourt/qrydisp.aspx?filename=31513

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